Why Is “Internet Article 23” Likely to Pass?

The Copyright (Amendment) Bill is set for its second reading this Wednesday (9th December, 2015). Despite various concern groups putting forward a number of proposed amendments during the consultation period (including Contract Override, Fair Dealing and User-Generated Content), the HKSAR Government has refused to take the constructive opinions based on copyright laws in other developed countries into account (for details, please refer to the online petition translated by The Real Hong Kong News for Keyboard Frontline and Copyrights & Derivative Works Alliance).

The HKSAR Government stresses that “Internet Article 23” is to protect copyright owners but at the same time ensure the freedom for Hongkongers. However, as detailed by the concern groups, due to grey areas and insufficient exemptions, those who create political parody, dubbing a song or performing a piece of music to express one’s emotions can be prosecuted. One of the key concerns amongst Hongkongers, particularly netizens, is that the Bill gives the authorities too much power – even though anyone can commit this criminal offense, it’s impossible to prosecute every netizens. Yet, selectively prosecuting activists and outspoken individuals, who are not likely to have the means to defend themselves, is entirely possible, particularly given the fact that “secondary creations” are largely parodies used to mock public figures, derived from copyrighted materials that the public is familiar with (e.g. movie poster, pop songs, etc).

In addition, in response to TVB’s submission (reference), judicial site blocking (paragraph 11) is something that the government is “prepared to consider” in the next Copyright Ordinance review. Should “site blocking” be included in future amendments, Hongkongers will not be able to visit some websites – similar to the censored websites in China and North Korea, people will have to get VPN to access to these sites.

Given that pan-democrats have 1/3 of the Legislative Council (LegCo) seats, many believe that pan-democrats would be able to reject the Bill. However, according to the LegCo Voting Procedures, this “belief” is wrong:

In compliance with the requirements stipulated in Annex II of the Basic Law with regard to the voting practices in previous legislatures in Hong Kong, members drew up a set of voting procedures, including voting arrangements by the raising of hands and by division, in Rules 46 to 49 of the Rules of Procedure (reproduced in Appendix II). The procedures are summarized as follows:

(a) The passage of Government bills shall require a majority vote of the Members present;

(b) The passage of Members’ bills, motions and amendments introduced by Members to any motions or bills shall require a majority vote of each of the two groups of Members present: Members returned by functional constituencies, and those returned by geographical constituencies through direct elections and by the Election Committee.

(c) A majority vote of Members present means that of the Members present, the total number of those voting in favour must have a majority over the aggregate of the remainder, including those voting against, those abstaining from voting and those present but not voting.

As the Bill is proposed by the HKSAR Government, it only requires a majority vote of the Members present – which means combining the votes of (the largely pro-China/Government) Functional Constituencies and Geographical Constituencies. A Bill tabled by a LegCo member requires a majority vote in each of the twogroups of Members present. The existing system makes it extremely difficult (if not impossible) for “personal bills” to be passed, while almost guaranteeing that bills tabled by the Government will pass. As reported widely in the media, the pro-China camp, particularly those from the Functional Constituencies, have extremely low attendance but always show up to support controversial Government Bills. An exception to this appears to have been the Political Reform Bill earlier this year: The reason it caused a lot of speculation is that a “careless mistake”, like most of the pro-government legislators leaving the LegCo hall right before voting (which is what happened in that instance) could not have taken place without an endorsement or order from above. For this reason, this incident cannot be viewed as a precedent. It is also worth noting that a bill for political reform (tabled by the Government or individual LegCo member) requires support from 2/3 of ALL LegCo members.

Although some pan-democrats have publicly said that they will vote against the Copyright (Amendment) Bill, but if we look into the existing constitution of the LegCo, it is obvious why the chance of it passing is so high:

Total LegCo seats: 70Functional Constituencies: 35Geographical Constituencies: 35
(NOTE: Ronnie Leung from Civic Party resigned in Sept and Jasper Tsang Yok-sing as President of the LegCo does not vote on Bills)

There are at least 40 pro-China LegCo members in the two groups above. If the HKSAR Government wants the “Internet Article 23” to be passed, it has already secured 57% of the vote, which means it is impossible for “Internet Article 23” to be rejected if the Government has put its mind into it – although surprises do take place from time to time, we are likely to see a high turnout at the second reading on Wednesday.

So the public’s perception that the 1/3 of the LegCo seats occupied by pan-democrats can make a difference is faulty. As evidence by the fact that in recent years many “white elephant” projects went ahead despite society- wide objections.

People ask “how did the Bill not pass at its first reading?”. The simple answer to this is 1) filibuster and 2) timing. The first reading was scheduled not long before the LegCo recess, with a handful of legislators filibustering the Bill by proposing hundreds of amendments, the reading was pushed back to November 2015.

If legislators continue to filibuster, the Bill won’t go through.

In theory, this is correct. However, all amendments proposed by individual legislator have to go through the LegCo Chairman (i.e. Jasper Tsang from DAB). For example, Raymond Wong Yuk-man (independent legislator labelled as radical localist) proposed 903 amendments to the Bill, but only 42 of them were approved to be debated at the second reading. No other legislator has filed any amendment as at the submission deadline.

Leung Kwok-hung (Long Hair) from the League of Social Democrats was confronted by citizens at the street press conference held by concern group Keyboard Frontline on 6 September. Alvin Cheng Kam-moon, Student Front founder, activist and one of the key localism figures, gave a speech on that day and questioned why no pan-democrat has filed amendments to join Raymond Wong in filibustering the Bill.

Cheng also demanded that all pan-democrats publicly declare their stance on this Bill. Before Cheng finished his speech, Long Hair snatched his microphone in disagreement. In response to the crowd, which objected to his snatching the microphone and asked him to confirm whether he would be filibustering the Bill, Long Hair replied, “this is like asking if I eat rice (a stupid question)”. When he was further pressed by the crowd, he said, “what gives you the right to ask me (this question)?”. As the crowd continued to confront him, Long Hair left, escorted by police.

Emily Lau Wai-hing from the Democratic Party commented on Long Hair’s incident above, “the Democratic Party does not agree with citizens surrounding other people to confront them, and the use of vulgarity.”

When pressed to respond whether the Democratic Party, as the leading pro-democracy party in Hong Kong, would join the filibuster as calls for filibustering the Bill continue to grow, Lau said the Democratic Party would not join the filibuster, “the Democratic Party will speak whenever there’s a need to. The Democratic Party is a party of pride and honour, and we know what we are doing and how to do it. A civilised society is about respecting others not surrounding people to confront them.”

For the filibuster to be successful, at least 20 legislators have to take turn speaking (each turn is cap at 15 minutes). Given that Sin Chung-kai of the Democratic Party has voiced his support for the Bill and Charles Peter Mok (a pan-democrat at the Functional Constituencies) said he would only vote against the Bill if the proposed amendments are rejected (Contract Override, Fair Dealing and User-Generated Content listed in petition above), whether the members of the Labour Party* and the Civic Party would join the filibuster.

regularly demand for quorum count (based on Rules of Procedures), and pan-democrats leave the hall to ensure a quorum is not met to drag on the debate, which could result in the session adjourned

with a total of 119 amendments (including 67 tabled by the government, 42 by Raymond Wong Yuk-man, 10 by Chan Kam-lam), all pan-democrats members present to keep taking turn to comment on each of the amendment

With at least 6 legislators refusing to filibuster and with only 42 out of the 903 proposed amendments being accepted for debate, it is likely that “Internet Article 23” will be passed this LegCo year.

**Garry Fan Kwok-wai from the Neo Democrats and Ray Chan Chi-chuen from the People Power both announced on 7 December late afternoon that they would filibuster the Bill.